Madras High Court
Sidappa vs Dhanlakshmi on 2 January, 2023
S.A.No.1056 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.01.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1056 of 2022
and
C.M.P.No.22682 of 2022
1. Sidappa
2. Sivaprakash
3. Mahadevamma .... Appellants
Vs
Dhanlakshmi .... Respondent
Prayer :- This Second Appeal is filed under Section 100 of Civil
Procedure Code against the Judgment and Decree dated 06.08.2021 passed
in A.S.No.17 of 2020 on the file of Additional District Court, Hosur, partly
modified the Judgment and Decree dated 29.01.2020 passed in O.S.No.128
of 2009 on the file of the Additional Subordinate Court, Hosur.
For Appellant : Mrs.R.Poornima
For Respondent : Mr.K.Venkateswaran
JUDGMENT
This second appeal is directed as against the Judgment and
Decree dated 06.08.2021 passed in A.S.No.17 of 2020 on the file of
Additional District Court, Hosur, thereby partly modifying the Judgment
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S.A.No.1056 of 2022
and Decree dated 29.01.2020 passed in O.S.No.128 of 2009 on the file of
the Additional Subordinate Court, Hosur, thereby decreeing the suit.
2. The respondent filed a suit for partition in respect of the
suit schedule properties item 1 and 2. According to the respondent, the 1 st
item of the suit schedule property, belongs to the respondent and the
appellants herein, being ancestral property of their father. The 2 nd item of
the suit schedule property belongs to Hindu Religious and Endowment
Board and their father became a tenant of the said property. The 1 st and 2nd
appellants are brothers and the 3rd appellant is the mother of the respondent
herein. Their father died on 26.02.2004. Other children are not having any
right over the suit properties, however, they died even before the attainment
of majority. After the demise of their father, the appellants and the
respondent are jointly enjoying the suit properties. Therefore, the
respondent is having 1/4th share in the suit properties.
3. The appellants filed a written statement and resisted the
suit on the ground that the suit properties are not joint family properties.
During life time of their father, he had executed a Will, wherein the
respondent was allotted a house property and the 1st item of the suit
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S.A.No.1056 of 2022
schedule property is allotted in favour of the appellants herein. Their
father had three daughters and one son, who died without marrying. The
3rd appellant, being mother of the children, succeeded the right of the
deceased children in the ancestral property. Therefore, the 3rd appellant
executed a registered Will in favour of the 1st and 2nd appellants herein and
bequeathed her right in their favour. Hence, the respondent is not entitled
for any share.
4. On the basis of the pleadings, the Trial Court framed the
following issues :-
(i) Is it true that the suit properties are the joint family
properties of the plaintiff and the defendants as claimed ?
(ii) Is the plaintiff entitled to get relief of partition of
the suit properties as claimed ? If so to what share ?
(iii) To what other reliefs the parties are entitled to ?
(iv) Whether the 3rd defendant succeeded the shares
of her deceased children ?
(v) Whether the plaintiff is entitled to get permanent
injunction as prayed for ?
5. On the side of the respondent, she had examined P.Ws.1 to
3 and marked Exs.A1 to A7. On the side of the appellants, they had
examined D.Ws.1 to 4 and marked Exs.B1 to B3. On considering the oral
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S.A.No.1056 of 2022
and documentary evidences adduced by the respective parties and the
submission made by the learned counsel, the trial Court decreed the suit and
the respondent was allotted 1/4th share in respect of both the suit schedule
properties. Aggrieved by the same, the appellants preferred an appeal in
A.S.No.17 of 2020 before the Additional District Judge, Krishnagiri and the
same was partly allowed and set aside the decree passed by the Trial Court
in respect of the 2nd item of the suit schedule property. Aggrieved by the
same, the present second appeal.
6. The learned counsel for the appellants has raised the
following substantial questions of law:
a) Whether the Courts below ought to have
seen that the plaintiffs have failed to establish the
nature of suit properties ?
b) In the absence of proof to show that the
suit properties are ancestral property are the Courts
below right in decreeing the suit ?
c) Whether the Courts below ought not to
have appreciated the case in a truncated manner ?
d) Whether the Courts below are right in
overlooking the crucial aspect of non joinder of
necessary parties to the suit ?
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S.A.No.1056 of 2022
7. Heard, Mrs.R.Poornima, the learned counsel appearing
for the appellants and Mr.K.Venkateswaran, learned counsel appearing for
the respondent and perused the materials available on record.
8. The learned counsel appearing for the appellants would
submit that the 1st item of the suit schedule property is an ancestral property
and as such, the deceased children also had shares in the property. After
their demise, their share devolved upon their mother i.e., the 3rd appellant
herein. Therefore, she bequeathed the property in favour of the appellants
1 and 2 herein and as such, the respondent is not entitled for any share over
the property. The 3rd appellant categorically deposed that the respondent
was already given property through Will executed by her father and except
the 1st item of the suit schedule property, no other properties were available
for the appellants 1 and 2 herein.
9. A perusal of the records reveals that the 1st schedule
mentioned property was acquired by father of the respondent. Therefore, it
is self-acquired property and other deceased children are not entitled for
any share. Therefore, the appellants failed to prove that the father had any
ancestral property. Though, the respondent admitted that the suit property
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S.A.No.1056 of 2022
was purchased by their father, it belong to highways department and any
time she would be evicted. Therefore, she is entitled for her share in
respect of the 1st item of the suit schedule property and the First Appellate
Court rightly decreed the suit in respect of the 1st suit schedule property.
10. As such the Courts below have analyzed the evidences,
both the documentary and oral in detail, adduced by the parties and by
giving cogent reasons, concluded rightly and decreed the suit. Accordingly,
this Court is of the considered opinion that no substantial question of law is
involved in this appeal.
11. In view of above, this Second Appeal is dismissed and
the Judgment and Decree dated 06.08.2021 passed in A.S.No.17 of 2020
on the file of Additional District Court, Hosur, thereby partly modified the
Judgment and Decree dated 29.01.2020 passed in O.S.No.128 of 2009 on
the file of the Additional Subordinate Court, Hosur, is confirmed.
Consequently, connected miscellaneous petition is closed. There shall be
no order as to costs.
02.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
Lpp
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S.A.No.1056 of 2022
To
1.The Additional District Judge, Hosur.
2.The Additional Subordinate Judge, Hosur.
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S.A.No.1056 of 2022
G.K.ILANTHIRAIYAN, J.
Lpp
S.A.No.1056 of 2022
and
C.M.P.No.22682 of 2022
02.01.2023
https://www.mhc.tn.gov.in/judis
